Adonis Construction v OKeefe Soil Remediation

There was arguably no construction contract in writing as a result of the sub-contractors acceptance of the contractors draft sub-contract order or the contractors letter of intent, the agreed minutes of the pre-start meeting and the sub-contractor starting work thereafter

5 August, 2009

ADONIS CONSTRUCTION V O’KEEFE SOIL REMEDIATION

Technology and Construction Court
Christopher Clarke J
5 August 2009

There was arguably no construction contract in writing as a result of the sub-contractor’s acceptance of the contractor’s draft sub-contract order or the contractor’s letter of intent, the agreed minutes of the pre-start meeting and the sub-contractor starting work thereafter

The contractor contended that a sub-contract was entered into as a result firstly of the sub-contractor’s acceptance of the contractor’s draft sub-contract order or secondly of the contractor’s letter of intent, the agreed minutes of the pre-start meeting and the sub-contractor starting work thereafter.

Christopher Clarke J rejected these contentions. The draft sub-contract order did not amount to an offer because the contractor’s e-mail referred to its attachment as the contractor’s “draft” sub-contract order" and stated that the official order would be signed off and issued in the post in due course. The use of that phraseology and, in particular, the word "draft" indicated not that the contractor was offering then and there to contract on those terms but that those were the terms of an offer to be made in due course. The actual offer contemplated by the draft was made by the despatch of a signed and numbered sub-contract order some time after the work had been completed. If the draft sub-contract order did amount to an offer, such an offer was not capable of acceptance by conduct because the draft order’s provision that the appended attestation page was to be duly signed under seal and returned within seven days was a specification of a required mode of acceptance, which never occurred and was not a term to be performed once the contact had been made by some other mode of acceptance. If the draft sub-contract order did amount to an offer and such an offer was capable of acceptance by conduct, the sub-contractor did not act so as to indicate its acceptance of the offer. It was in any event difficult to say that starting the work was clearly referable to the draft offer as opposed to the letter of intent because that letter constituted an instruction to proceed to procurement of labour and material and contemplated that costs would be incurred as a result which, if substantiated, would be reimbursable if the sub-contract did not take place up to the date of the abortion, whenever that might be and the start of the work might well have been referable to the discussions in relation to the “risk clause”.